APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 74-204).
Van Dusen and Adams, Circuit Judges, and Weiner, District Judge.*fn*
VAN DUSEN, Circuit Judge.
The issue in this case is whether dispensing of a prescription for a controlled substance outside the usual course of professional practice*fn1 constitutes dispensing or possession of that substance with intent to dispense under the Controlled Substances Act (CSA), 84 Stat. 1242, 21 U.S.C. § 801 et seq., including § 841(a)(1). We hold that it does.
Defendant Patrick L. Tighe is a practicing physician, licensed by the Commonwealth of Pennsylvania, and registered with the Federal Drug Enforcement Administration. Between November 26, 1973, and May 29, 1974, two Commonwealth drug enforcement agents visited defendant at his office in his home and, between them, obtained 18 prescriptions for biphetamines, a Schedule II controlled substance. The prescriptions were never filled and were turned over to another agent, who headed the investigation, for use in obtaining an indictment and for use in evidence at trial.
Defendant was indicted on eighteen counts of dispensing and distributing biphetamines under 21 U.S.C. § 841(a)(1), which provides:
"(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally -
"(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance."
At the close of trial, the district judge instructed the jury that he was eliminating "distribution" from the case because, in his opinion, there was insufficient evidence to support conviction on that offense, and charged them on the offense of dispensation. The jury found defendant guilty on all 18 counts. Motions for acquittal and a new trial were denied by the district court; sentence was imposed, and this appeal followed.
The term "dispense" is defined by 21 U.S.C. § 802(10), which provides, inter alia, that:
"The term 'dispense' means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance and the packaging, labeling, or ...